113 N.Y.S. 478 | N.Y. App. Term. | 1908
The pleadings are oral. The complaint is: "Goods sold and delivered.” The answer "is: “General denial. Demand bill of particulars.” No bill of particulars, however, is annexed to the record. It appears that a considerable time ago—i. e., April 13, 1906— judgment by default was obtained herein by plaintiffs, and that the amount of the judgment was collected under execution, and that plaintiffs still retain such money. Subsequently, however, and on March 18, 1907, the default was opened, the judgment set aside, and the case set down for trial. On the trial, which was before a jury, on April 27, 1908, the plaintiffs appear to have devoted their efforts to show an account stated, instead of proving their cause of action under their complaint for goods sold and delivered. The jury found for plaintiffs, and against Isaac Korn, .in the sum of $152.95, while as to the other defendant the complaint was dismissed. Defendant Korn appeals.
There is no proof of an account stated, as, at the best, plaintiffs’ evidence shows a mere promise, conditioned upon the happening of another event, that plaintiffs “would get all the money coming to them.” While the gross laches of the defendants in waiting nearly a year after the.default judgment had been collected under execution before getting the default opened, while not subject to a review on this appeal, may cast a shadow of suspicion on defendants’ position, as such delay probably rendered it more difficult for plaintiffs to prove their case, still such laches is not subject to review on this appeal.
Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.
